By Jeff Greenfield
In the flood of commentary engulfing us about the gay marriage cases before the Supreme Court, be wary--be very, very wary--about how the labels “conservative and liberal” are thrown around.
One of the sins besetting coverage of the high court is that these labels are often not simply useless, but positively confusing. Why? Because when it comes to judicial opinions, such terms often have very different meanings than they do in political discourse.
Take the fight over DOMA, the Defense of Marriage Act. President Clinton signed it into law in the fall of 1996, and now says it should be overturned. Clinton’s enthusiasm for the law back then can be measured by the fact that he signed it--literally--in the middle of the night, and argued in a “signing statement” that it should not be seen as an excuse for discrimination.
(An honest “signing statement” from Clinton would have said, “I’m heading for an easy re-election against my totally flummoxed Republican opponent, Bob Dole, and I’m not going to give him any reed, no matter how thin, to grasp. I’ll make it up to my gay supporters and campaign contributors later.” But I digress.)
In political terms, upholding DOMA would be the “conservative” position--at least, it would have been a year or two ago, when most voters said they opposed gay marriage. Even with the steady shift of public opinion toward the gay marriage position, only one Republican senator, Ohio’s Rob Portman, publicly supports the idea, and his openly gay son made the issue personal for him.
The Republican Party platform still defines marriage as the union of one man and one woman (or, in the case of former House Speaker Newt Gingrich, one woman followed by another woman followed by another woman).
But consider: one of the tenets of conservatism is an embrace of federalism, the idea that states retain significant powers under the Constitution. The steady expansion of federal power is an affront to that Constitution, many conservatives say.
Traditionally, marriage is one arena where states have all but plenary power; it took until 1967 for the Supreme Court to tell states they could not prohibit interracial marriage.
So if the court strikes down the Defense of Marriage Act, is that a “liberal” result enabling gay couples married in states where gay marriage is legal to enjoy the same economic advantages that federal laws now grant to straight couples? Or is it a “conservative” ruling, limiting the federal government’s ability to override state power?
It’s just one example of how confusing political labels can be when brought into the courtroom.
Here’s another, taken from the recent oral arguments in the court over the extension of the Voting Rights Act.
The “liberal” position politically is that the act ought to be extended to protect the black vote, while the “conservative” view is that the law has outlived its purpose, now that it’s almost half-century old, and a black president sits in the White House.
When it comes to the Supreme Court, however, a very different measurement applies.
One of the litmus tests for judicial conservatism is the idea of judicial restraint -- that courts should give substantial deference to the decisions of the political process. When Congress and the president enact a law, conservatives generally say, judges should avoid “legislating from the bench.”
Yet in oral arguments on the Voting Rights Act, Justice Antonin Scalia--the poster child for conservatives--was openly scornful of that political process.
Scalia mocked the law’s name (“even the name of it is wonderful...who’s going to vote against that in the future?”) And rather than treating the law’s overwhelming support in Congress as an argument for its validity, Scalia called its popularity “a phenomenon that is called perpetuation of racial entitlement.”
Scalia’s argument was a far, far distance from “judicial restraint.” It was, in fact, an argument that said, “I, as an unelected justice for life, am going to substitute my judgment for the judgment of the Congress and the president.”
Your political preferences will tell you whether Justice Scalia is right or wrong. What is clear, however, is that his approach is in no sense a “conservative” judicial approach.
No one captured this distinction better than Justice Ruth Badger Ginsburg, a pioneering litigator in the field of sex discrimination and a political liberal who has sharply criticized the reasoning behind Roe v. Wade, which constitutionalized a woman’s right to an abortion some four decades ago. The sweep of the decision, Ginsburg argues, has interfered with the steady expansion of abortion rights through the political process.
If she were a lawmaker, Ginsburg clearly would have voted for an expansion of abortion rights. As a matter of Constitutional analysis, she is a critic.
It’s the kind of distinction that will be highly useful when the court rules on gay marriage. It may well be that a constitutionally “conservative” ruling will warm the hearts of liberals.
By Jeff Greenfield